U.S. Education Department Makes First Move in Bid to Reverse DeVos-Era Title IX Rule on Sexual Assault

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Updated April 6

The U.S. Department of Education is asking for input from students, educators and others as part of a comprehensive review of Title IX — an initial step toward writing a new rule protecting students from sexual harassment and violence. 

In addition, officials will hold a public hearing in the coming weeks to allow for oral comments on issues including sexual harassment in school, sexual violence, and discrimination based on sexual orientation or gender identity. 

Tuesday’s announcement complies with a March 8 executive order from President Joe Biden and follows a U.S. Department of Justice Civil Rights Division memo released Monday stating that the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County applies to Title IX. In that case, the court ruled that employers can’t discriminate against employees for being gay or transgender. 

Before the end of the Trump administration, former Secretary of Education Betsy DeVos issued a memo arguing that the Bostock decision does not apply to Title IX. The Biden administration has quickly reversed that interpretation. The article below was published March 8, when President Biden signed his executive order.

President Joe Biden took a step Monday toward fulfilling a campaign promise to rewrite the Trump-era rule on sexual violence. He announced plans to sign an executive order directing the U.S. Department of Education to review the Title IX policy issued under former Education Secretary Betsy DeVos.

A second order creates a White House Gender Policy Council focusing on equal rights for women and girls. The council will, among other actions, “support gender equity and combat gender stereotypes in education, including promoting participation in science, technology, engineering, and math fields.”

On Title IX, the order directs Education Secretary Miguel Cardona to consider suspending, revising or rescinding the rule or begin the process of drafting a new one and collecting comments.

Fatima Goss Graves, president and CEO of the National Women’s Law Center called the order on sexual violence “a victory for the many brave student survivors who rose up against the injustice, discrimination and cruelty of the DeVos Title IX.”

Since DeVos’s Title IX rule was issued last year, Democrats and advocacy groups have called for its reversal, arguing that it favors those accused of sexual attacks and has fewer protections for victims. But DeVos’s rule was issued after a thorough rulemaking process, and experts have said it won’t be easy to knock down. The rule prompted at least four lawsuits. One case was dismissed last year and others are still at the district court level.

In February, the Department of Justice and plaintiffs in Philadelphia v. Devos, in which 18 states and the District of Columbia sued over the law, asked for a temporary suspension of their case “to allow incoming department leadership to review the underlying rule at issue.” The motion before the U.S. District Court for D.C. is pending.

Meanwhile on Monday, the Women’s Student Union at Berkeley High School in Berkeley, California, filed a lawsuit over the DeVos rule in the U.S. District Court for the Northern District of California.

“DeVos made it easier for schools to avoid their responsibilities to keep kids safe from sexual harassment and assault,” Seth Galanter, senior director at the National Center for Youth Law, which is representing the students, said in a statement. “Sexual harassment has not stopped for the pandemic. We know the Biden administration is looking at this issue, but there’s no time to wait when children are at risk today.”

Last week, more than 100 Democrats in the House sent a letter to Cardona asking that he prioritize reversing the DeVos rule. They argued that it “turns back the clock and erodes hard-fought protections and rights for victims with a ‘boys will be boys’ approach.”

They also urged Cardona to work with the Department of Justice to pause implementation of the rule and to issue temporary guidance bringing back elements of the “Dear Colleague” letter issued during the Obama administration. That policy urged colleges and universities to investigate all complaints, but critics of that policy said it ignored the due process rights of those accused of sexual assault and led to students being unfairly forced to leave their institutions based on false accusations.

Catherine Lhamon, now deputy director for racial justice and equity on Biden’s Domestic Policy Council, served as assistant secretary for civil rights at the department when that guidance was issued.

Maree Sneed, an education attorney who advises the AASA, the School Superintendents Association, on Title IX issues, said she wants future department policies on the subject to be more explicit about how K-12 differs from higher education on requirements such as formal hearings.

She expects Cardona’s background in Connecticut to be helpful because in addition to district Title IX coordinators, schools in the state also have staff members trained on the policy. That’s a practice she’d like to see nationally.

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